Monday, 6 April 2009

Did the police break the law at Bishopsgate?

Kettling at Bishopsgate: wrong and illegal?

Louise Christian argues in an excellent recent article that kettling tactics of the kind deployed by the police on April 1 might be legal, but that doesn't make them right. I have argued in earlier posts that kettling, in general, is wrong. But were the specific kettles on April 1, such as that imposed on the Climate Camp at Bishopsgate, also illegal?

I emphasize that I am not a lawyer. So what I say should be seen as tentative and as an attempt to get a dicussion going on this issue. (I focus on the Bishopsgate case, but my argument might also have relevance in considering the legality of the police kettle around the protest at RBS.)

My basic argument, which I shall elaborate below, is this. The claim that kettling is legal derives from the Law Lords' decision in Austin (FC) v. Commissioner of Police of the Metropolis, decided on January 28, 2009. In this decision, Lord Hope of Craighead determines that kettling tactics are not necessarily in violation of Article 5 of the European Convention of Human Rights which asserts a fundamental and absolute right against 'deprivation of liberty'.

But Lord Hope determines that the practice is consistent with the Convention right in Article 5 only under certain conditions. It is very questionable as to whether the relevant conditions were satisfied at Bishopsgate. Thus, even if the Law Lords' ruling is correct as a matter of human rights law - it is due to be challenged in the European courts - there is reason to think that the police use of the kettle tactic at Bishopsgate on April 1 was unlawful.

The Austin case

The Austin case arose out of the police use of a kettle to contain a group of anti-capitalist protestors in Oxford Circus on May 1, 2001. The facts of the case, as presented in Lord Hope's opinion, are these. On May 1, 2001, a group of around 3,000 or so protestors converged at Oxford Circus at 2pm. This surprised the police, who had received no cooperation from the protest organisers, and had assumed from the little information they had that the protest would begin at 4pm. According to Lord Hope's account, the protest quickly became disorderly and violent. The police reacted by putting a cordon around the protest group (a kettle). This had not been their intention, but was an improvised response to an unanticipated situation which seemed to be getting out of control. The aim was to maintain the cordon until such time as people could be let out so as to achieve a peaceful dispersal of the protesting crowd. The cordon was put in place around 2.25pm and the police did not feel it safe - safe in terms of the risk to the person and property of those around the demonstration - to lift it until much later, completing the crowd's dispersal at 9.30 pm.

Lois Austin was one of the protestors caught in the kettle. There is no suggestion that she personally engaged in any violent activity. Starting in 2002, she brought a case against the Commissioner of the Metropolitan Police, arguing that the kettle constituted a violation of her personal liberty under Article 5 of the European Convention of Human Rights (enshrined in UK law, of course, via the Human Rights Act 1998). Her case was dismissed by the first court she went to, by the Court of Appeal and, finally (so far as the UK courts are concerned) by the Law Lords. As said, she is now taking her case to the European courts.

What Article 5 says

Article 5 (1) of the European Convention of Human Rights begins as follows:

'Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.'

It then lists six 'cases' under which a person may be 'deprived of his liberty':

'(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to preventing his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.'

Now, as I understand it, Lois Austin argues that since she was penned into a territory by the police, unable to leave, for something like seven hours (without food, water, toliet facilities, and unable to pick her child up) she did suffer a 'deprivation of liberty'. Moreover, none of the six cases (a) - (f), allowing deprivation of liberty, applied; by all accounts, she was protesting peacefully throughout the day. Thus, her right to liberty and security of the person under Article 5 (1) was violated by the police kettle.

Lord Hope's argument in Austin

How - with what reasoning - did Lord Hope dismiss her case?

The first step in his argument is to argue that there is a distinction to be made between 'deprivation of liberty' as referred to under Article 5 and restrictions on liberty of movement. Even where cases (a) - (f) don't apply, by no means all restrictions on liberty of movement count as a 'deprivation' of the liberty which Article 5 asserts as a fundamental and absolute right. Of course, some restrictions on liberty of movement will count as such. But not all. Otherwise, for example, we'd have to conclude that every crowd control measure at a football ground constitutes a violation of Article 5, an implication that Lord Hope regards as obviously absurd.

Everything now depends on just when a restriction on liberty of movement counts as a 'deprivation of liberty'. Lord Hope begins by noting that much of the case law suggests that one potentially relevant factor is whether or not the restriction passes over some threshold (not clearly defined in the case law) of degree and intensity. By a simple duration criterion, for example, the police kettling of Lois Austin on May 1, 2001, would probably count as 'deprivation of liberty'. However, Lord Hope argues, the duration of the restriction on liberty of movement (that it lasts, say, many hours rather than a few minutes) is not necessarily conclusive.

At this point, Lord Hope takes a second key step in his argument. He claims that in determining whether or not a restriction on liberty of movement is a 'deprivation of liberty' we should look not only at the degree and intensity of the restriction but at what he terms its purpose. He accepts that this is a novel move in the legal thinking around this particular topic, but he argues that it is a sensible move to make, and one that is in line with European court thinking in other areas where the ambit of fundamental rights is in question.

In short, according to Lord Hope, a restriction on liberty of movement does not constitute a 'deprivation of liberty' under Article 5 provided that the restriction is not arbitrary. He provides (at least) three elaborations of what this means:

'...measures of crowd control which involve a restriction on liberty [of movement], if they are not to be held as arbitrary, must be carried out in good faith and should not exceed the length that is reasonably required for the purpose for which the measure was undertaken.' (Para 33.)

Second:

'The ambit that is given to article 5 as to measures of crowd control must, of course, take account of the rights of the individual as well as the interests of the community. So any steps that are taken must be resorted to in good faith and must be proportionate to the situation which has made them necessary. This is essential to preserve the fundamental principle that anything that is done which affects a person's right to liberty must not be arbitrary.' (Para 34).

Finally:

'In my opinion measures of crowd control will fall outside the area of its [Article 5's] application, so long as they are not arbitrary. This means that they must be resorted to in good faith, that they must be proportionate and that they are enforced for no longer than is reasonably necessary.' (Para 37.)

Lord Hope is not as explicit as he might be - and, perhaps, given that a fundamental right is at stake, as he ought to be - about what the terms 'good faith', 'proportionate' and 'no longer than is reasonably necessary' mean. But it is possible to give these ambiguous words some content by looking at the features of the May 1, 2001 case which impressed him as making the police kettle that day one that was, in his view, introduced in 'good faith', 'proportionate', and enforced 'no longer than...reasonably necessary.'

The key features of the case which impressed him seem to be these:

(1) that the demonstration in question contained a large disorderly, violent element from its beginning; and,

(2) that the disorderly, violent character of the demonstration continued for a very long time after the police introduced the cordon. 'The delay in the dispersal was substantially contributed to by the attitude of the crowd which was not co-operating with the police....about 40% were actively hostile, pushing and throwing missiles' (para 6).

The first feature - a high initial level of disorder and violence - seems, in Lord Hope's view, to make the initial kettling 'proportionate': a proportionate response to a real risk that the demonstration might injure people or damage property around them.

The second feature - ongoing disorder and violence - seems, in Lord Hope's view, to make the duration of the kettle - about seven hours - 'no longer than...reasonably necessary'.

Application to Bishopsgate

Having finally established what (I think) Lord Hope ruled in this case, we can now turn to the case of the kettle at the Climate Camp at Bishopsgate, April 1, 2009.

Did the police kettle at the Climate Camp satisfy Lord Hope's conditions of being in 'good faith', of being 'proportionate' and of being enforced 'no longer than...reasonably necessary'?

Given the evidence we currently have about the nature of the Climate Camp event, from a wide range of credible sources, it seems that it was a very largely peaceful and convivial event. There was certainly nothing like the degree of violence and disorder which Lord Hope sees in the May 1, 2001, Oxford Circus case - or, indeed, any significant violence or disorder at all. Thus, there must be a real doubt as to whether the police initiative in imposing the kettle meets Lord Hope's test of proportionality.

Second, the evidence we currently have also suggests that even after the kettle was imposed - a highly provocative move in the circumstances - the Climate Camp remained, internally, orderly and peaceful. There was no situation of ongoing, prolonged violence and disorder. Thus, it is also questionable as to whether the kettle satisfies Lord Hope's test of being enforced 'no longer than...reasonably necessary' - at least if this means 'no longer than is reasonably necessary to enable people to disperse peacefully'. This was not like the situation at Oxford Circus on May 1, 2001, when according to Lord Hope, the police had no reasonable choice but to keep the protestors penned in for hours because so many of them clearly maintained violent intent.

Conclusion: a case to answer?

I am sure that the police kettle at the Climate Camp at Bishopsgate on April 1 is of a kind that ought to be illegal.

I repeat: I am no lawyer. There might well be a range of considerations relevant to this matter that I do not appreciate. I invite readers to point them out.

But judging the police actions against the detail of Lord Hope's judgment in the Austin case, it seems to me that there is a case to be made that the police's action at Bishopsgate on April 1 was not only of a kind that ought to be illegal: it was illegal.

Sunny: you ask: 'But isn't the problem that the police will simply say that perceived threats...will justify 'reasonable' use of force?'

My honest answer is: 'Maybe'! But let me explore the issue a bit.

Let's say we agree with Lord Home that there can be room for what he calls 'pragmatic' considerations in determining the 'ambit' of a fundamental right - e.g., when a restriction on liberty of movement counts/doesn't count as a 'deprivation of liberty' under Article 5 of the European Convention on Human Rights.

If we do accept this, however, there is a need to be very precise about just what the relevant 'pragmatic' considerations are. They must also be clear enough to be challengeable in a court. If the police can just walk in to court and say 'Well, we thought pragmatic criteria x, y and z applied', then we will have put the definition of the ambit of fundamental rights, for all practical purposes, entirely in the hands of the police. What our fundamental rights are will depend on their discretion, in effect.

I don't think Lord Hope wanted this. I think his criteria of 'good faith', 'proportionality' and 'no longer than reasonable' were intended to lay down standards against which the public could assess and potentially challenge police action. (Well, I hope they were.)

However, because the terms are left rather vague, its not clear that, as they stand, they can do this job.

One way to give them more content, so that they might do the job, is to look at how Lord Hope uses the May 1, 2001 Oxford Circus case in his opinion to arrive at his notions of 'proportionality' and so on.

If we do that, then I think the argument I make in the post is plausible.

But I agree that if notions like 'proportionality' are open to looser definition, then it is less clear whether there is a legal basis for challenging the police action at Bishopsgate on April 1.

I think the argument is well made. (Shows good transferability of those political philosophy skills too!) This strongly suggests that there would be particular value in the climate camp case being used as the basis for legal challenge, simply because it lacks so many features of the previous case.

My instinct would be that the best (and pretty weak) case for good faith, reasonable proportionality, etc would relate not at all to the group of protestors who were contained, but either to some argument relating to the resource pressures of policing adjacent events, fears of the risks of issues involved in one becoming mixed up in the other, etc, etc which (at its very best) would be a highly pre-emptive and precautionary approach to a situation where there was no existing problem to be contained.

That seems to me rather close to a fairly arbitrary ('reasonable if and whenever the police think so') approach, which Sunny suggests but which, as you say, does not appear to be the spirit in which Lord Hope approached the other issue, even if some might well think he offers rather broad discretion in that judgment. So there must at least be some reasonable chance that it could deliver a distinction between cases where there has been some violence or disorder (and then a debate about proportionality on such occasions) and cases where that is not present.

I was wondering - I guess, straying a little from the precise legal question, towards the pragmatic - but in the example of (football match/whatever) crowd control, would the police contain/kettle peaceable fans with violent hooligans for a long time (indeed, for any more than an initial moment to establish the police cordon)?

I imagine not, if for no other reasons, then: first, because the peaceable fans would impede the police's peace-and-order-keeping actions against the violent hooligans; and second, the peaceable fans would themselves be vulnerable to the violent hooligans' actions (so by trapping them with the violent hooligans, the police would be exposing the peaceable fans to risk of harm).

Following that logic, (long-term) kettling of peaceful protesters alongside passively provocative or actively violent protesters would be counterproductive for the police themselves, if they wanted to keep the peace and prevent harm. Therefore, that (long-term) kettling would be illogical and indefensible (and thus, potentially, illegal by Lord Hope's criteria).

It would also suggest that the police actions were either incredibly poorly-thought-through (not an impossibility), or had an ulterior motive (either truly malevolent, like provocation, or pathetically neutral, like a lazy wish for least-effort containment and an indifference towards the protesters' motives, practices and rights).

samarkeolog: you make a very good point. Lord Hope's argument that kettling can ne justifiable when its a proportionate measure to contain disorder and prevent injury to people or property is inherently problematic - in a way that his opinion doesn't face up to - if kettling has the effect of provoking disorder and rendering some people - perhaps very vulnerable people - more exposed to the risk of injury because the police are trapping them in a high-risk area. Given these features of kettling, one might argue that his opinion subverts itself: the predictable effects of kettling, in terms of increasing disorder and risk of injury to (innocent) parties, are such that it can never - or hardly ever - be a 'proportionate' and/or 'good faith' response to a problem of disorder in a protesting crowd. This whole line of analysis is overlooked in Lord Hope's judgment, but the events of April 1 show us that it simply cannot be ignored.

Going back to the judge's first step: I simply don't know how one makes a distinction between 'deprivation of liberty' and 'liberty of movement'. Liberty means liberty of movement unless the conditions (a-f) apply. Liberty means the right to challenge a police officer with 'I am going to go about my business (movement), or engage in my normal activity without moving, unless you arrest me'. I don't see how a distinction can be made. The predicate falls down?

Under the Civil Contingencies Act 2004 there is provision for restrictions on liberty of movement (and forcable relocation) but this can only occur during a state of emergency. The purpose is justified in the context of for example relocating and rebuilding a city en masse. Such draconian constraints on liberty simply do not apply to crowd control - windows may get smashed but holding a crowd to the detriment of its individuals is not an appropriate response to such crimes.The purpose does not require detention or 'restrictions on movement'.But likewise I am no lawyer either and am baffled by the epistemology that would underlie the distinction between 'deprivation of liberty' and 'liberty of movement'.

I came across a link to this post on FB, and having read it, wish to offer my twopence worth.

First, I think your exposition of Lord Hope's reasoning is spot on, and insofar as your questions/conclusions about the Climate protesters follow from that, they are reasonable.

Second, It is worth pointing out that Lord Hope's proportionality analysis would never have been possible before the Human Rights Act. In the good old days, Lois Austin's treatment would have been a tort of false imprisonment plain and simple, since there was no question that she was under any suspicion. Asking a broader question, does Austin provide some support for David Cameron's assertion that the Human Rights Act has done us no favours, what we need is a British Bill of Rights?

Finally, it is worth pointing out just what an `extreme' decision Austin is, in the sense that all five judges in the case, Lords Hope, Scott, Walker, Carswell and Neuberger would score in the top half or so of their colleagues in terms of state deference. It is therefore highly likely that any other constitution of the House would have produces a more agreeable result for the appellant.